The Ghost of Bush v. Gore Haunts the Supreme Court's Colorado Case

Tammy Kim / The New Yorker
The Ghost of Bush v. Gore Haunts the Supreme Court's Colorado Case In 2000, the Court played an outsized role in the Presidential election. This year, in the fight over keeping Trump’s name on the ballot, that decision is a warning but not a precedent. (photo: AFP)

In 2000, the Court played an outsized role in the Presidential election. This year, in the fight over keeping Trump’s name on the ballot, that decision is a warning but not a precedent.

In early December, 2000, a young lawyer in Washington, D.C., named Gerard Magliocca stopped in front of the Supreme Court building. The question of who had won the Presidential election, on November 7th, remained unresolved. George W. Bush and Al Gore were separated by mere hundreds of votes in Florida, and the Bush campaign had sued to stop a recount. The Florida Supreme Court sided with Gore, so Bush appealed to the United States Supreme Court. While the nine Justices deliberated, the country was fixed to television news of “butterfly ballots” and punch-card “hanging chads.” At the courthouse, the scene was quiet. “There was a TV reporter standing on a box outside to get the building profile in the shot,” Magliocca told me. “I asked if he’d heard anything yet, but he hadn’t.”

Magliocca was a second-year associate at the white-shoe firm Covington … Burling. He was a Republican who’d graduated from Yale Law School and clerked for the enduring Second Circuit judge Guido Calabresi. Election law was a relatively narrow discipline, concerned with voting rights, campaign finance, and redistricting; Bush v. Gore was unprecedented. “At the time, everybody said, ‘This is a question about who won Florida. Elections are always decided by the state Supreme Court. Why would the U.S. Supreme Court get involved? They don’t have jurisdiction,’ ” Magliocca recalled. “That all turned out to be wrong.”

Soon after Bush v. Gore, Magliocca left the law firm to teach at Indiana University, where he joined the Federalist Society. He is now the Samuel R. Rosen Professor at the McKinney School of Law and a widely published expert on the history and constitutional jurisprudence of Reconstruction. One of his more recent projects has focussed on Section 3 of the Fourteenth Amendment, which provides that no person, “having previously taken an oath . . . as an officer of the United States . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.” He took on this research during Donald Trump’s Presidency, but had no political motivation. “It was really just, Here’s a portion of the Fourteenth Amendment that I know almost nothing about,” he told me.

A draft of Magliocca’s findings on the insurrection clause was published in December, 2020. The paper argues that, after the Civil War, the courts were somewhat hesitant to apply Section 3, though thousands of Confederate soldiers were disqualified retroactively. Section 3, Magliocca told me, “was written after a lot of bedlam in the streets. There was a lot of political violence.”

Less than a month after the paper was published, Section 3 found real-world application for the first time in a hundred and fifty years. The scope of the January 6th attack was still coming into view when Magliocca sat at his desk to parse the day’s events. “I find very interesting the use of the word ‘insurrection’ to describe what occurred today at the Capitol,” he wrote that evening, on the law blog Balkinization. “For example, Senator Romney issued a statement saying that today was ‘an insurrection, incited by the President of the United States.’ Senator McConnell described today as a ‘failed insurrection.’ ” If so, Trump might be ineligible to run for office in the future under Section 3, Magliocca continued, but it was “just an academic point for now.”

Lawsuits alleging that Trump should be disqualified from Presidential ballots in 2024 have since been filed in some twenty states. (In December, Maine’s secretary of state excluded Trump from the ballot; that decision is now on hold.) This week, the U.S. Supreme Court will hear oral arguments in Trump v. Anderson, which concerns whether Trump can appear on the Republican primary ballot in Colorado. The named plaintiff seeking his disqualification, the former Republican lawmaker Norma Anderson, claims that Trump engaged in insurrection on January 6th. The Colorado Supreme Court had ruled in Anderson’s favor.

After January 6th, Bush v. Gore “popped into my mind,” Magliocca told me. “This is going to the Supreme Court.” The two cases have little technical overlap. Bush v. Gore concerned an election that had already happened, and ultimately revolved around Section 1 of the Fourteenth Amendment (equal protection). Trump v. Anderson is based on Section 3 (insurrection), and has been scheduled—in advance of Super Tuesday—to avoid ex-post-facto controversy. But it’s impossible not to think of them together. Bush v. Gore is a spectre floating over this week’s proceedings.

The Supreme Court of 2000 was more ideologically diverse than it is today. There were three resolutely conservative Justices (William Rehnquist, Antonin Scalia, and Clarence Thomas), two conservatives known to occasionally “swing” their votes (Sandra Day O’Connor and Anthony Kennedy), and four liberals (David Souter, Stephen Breyer, Ruth Bader Ginsburg, and John Paul Stevens). Justices Scalia and Ginsburg were famously close friends. Each Justice had four clerks, élite law-school graduates who assisted with research and often shared a similar world view. The clerks ate lunch together in the courthouse cafeteria, or dinner at Tortilla Coast, and played basketball on the fifth floor, the other “highest court in the land.”

An often forgotten detail from 2000 is that the Supreme Court actually considered the Florida recount twice. After Election Night, teams of lawyers for both campaigns descended on Tallahassee and traded lawsuits: Gore demanded recounts in various counties; Bush, who had the apparent lead, wanted the election certified statewide. The Florida Supreme Court agreed with Gore. This was just before the United States Supreme Court went on break for Thanksgiving, and Justice Stevens was golfing, ironically, in Florida when Bush’s petition came in; a clerk had to read it to him over the phone. The clerks for Scalia shared their holiday dinner.

On December 4, 2000, the Court issued a unanimous decision, sending the case back to the Florida Supreme Court. In the meantime, Florida’s secretary of state—who reported to Bush’s brother Jeb, then governor—had certified the election for Bush, and some of the clerks hoped that the remand would force local officials to resolve the conflict. “There was a great sense of relief. We thought maybe we were done with it,” a former clerk for one of the liberal Justices told me.

But just a few days later the case was back. The Florida Supreme Court had ordered manual recounts across the state, which Team Bush saw as an unconstitutional overreach. Bush asked the U.S. Supreme Court for an immediate stay—a freeze of the recount—an extraordinary remedy. The conservative Justices outvoted the liberals, 5–4, granting the stay. Many Court watchers were stunned.

It was a sleepless, “crazy,” and “surreal” time at the Court, according to the former clerks and attorneys on both sides. Typically, it took weeks, even months, to decide a case. The clerks would help the Justices sort through briefs, research cited cases, and write memos on knotty questions of law. The Justices would circulate draft opinions, concurrences, and dissents, trying to get one another to sign on. Revise, distribute, revise. Now a ruling of unprecedented consequence had to be assembled in days, really hours. Some clerks worked overnight. A chill set in among the staff, who passed around drafts but expected little agreement across the ideological divide.

Oral argument was held on December 11th. The very next day, the Court issued a 5–4 decision, cementing a victory for Bush. The Times ran a closeup of the President-elect’s smiling face, under the enormous headline: “BUSH PREVAILS: BY SINGLE VOTE, JUSTICES END RECOUNT, BLOCKING GORE AFTER 5-WEEK STRUGGLE.”

The mood inside the courthouse became gloomy. “Leading up to that whole thing, the clerks got along pretty well,” a clerk for one of the conservative Justices told me. “After Bush v. Gore, it really broke down. There were just people who felt strongly that something terrible had happened.”

For several decades following the civil-rights era, the Court had been seen as a reformist institution. Bush v. Gore undermined that. “I think liberals have been hurt more by that misplaced view, because they had more to lose,” a conservative clerk told me. “The Supreme Court will break your heart.”

On November 6, 2000, the day before the election, Benjamin Ginsberg, a lead attorney for Bush, took his team to lunch at a Mexican restaurant across the street from campaign headquarters, in Austin. In “these last moments of sanity,” the dozen lawyers shared chips and salsa and “were careful not to drink,” he recalled. “We were talking about lawyers’ fantasies—walking up the steps of the Supreme Court to argue a case for your client. Somebody said, ‘What about a Presidential recount?’ And I said, emphatically, ‘That’ll never happen.’ ” Ginsberg had worked on many recounts in state and local races, but it was inconceivable at the level of President. “That turned out to be not a really good prediction. The whole period, the whole thirty-six days, was one of ‘Wow, I never thought we’d be doing this,’ ” he said.

In Trump v. Anderson, as in Bush v. Gore, there are many questions of law and fact, and thus many off-ramps that the Supreme Court could take to issue the least controversial ruling possible. The Justices could decide, for instance, that Trump did not participate in “insurrection or rebellion” under the meaning of Section 3, or that Section 3 does not apply to the office of President in order to keep him on the ballot. They could also send the case back to Colorado, or Congress, for fact-finding on Trump’s activities and statements, but that comes with the risk of delay.

Ginsberg recently teamed up with a progressive scholar of election law named Richard Hasen to submit an amicus brief in Trump v. Anderson. (During Bush v. Gore, Hasen was teaching at Loyola Law School, in Los Angeles. “I threw the syllabus out, and every week we talked about the latest cases in the dispute,” he told me.) Their brief does not take a position on whether the Supreme Court should affirm or reverse the Colorado Supreme Court; it merely urges the Court to decide something, and soon, because “kicking the can down the road would be far more fraught for the country” than it was even in 2000. “One lesson the Court has learned from Bush v. Gore is: they want to step in before their decision is so obviously about an election,” the former liberal clerk told me.

The difference in timing—before or after the election—makes the Colorado case feel a bit less panicked. “Bush v. Gore was a real dispute on the ground, in the real world,” a lawyer who was on Team Gore told me. “I sort of view Trump v. Anderson as being cooked up in a law-school laboratory somewhere.”

In a sense, it was: the litigation is directly traceable to Magliocca’s paper, which has fuelled a Never Trump mini-movement. Last August, the law professors William Baude and Michael Paulsen extended Magliocca’s research, writing a paper of more than a hundred and twenty pages that prescribes a strategy of disqualification under Section 3. Though it is still technically forthcoming, the article has influenced many law professors and litigators.

In November, Magliocca testified at the plaintiff Anderson’s behest, in Colorado. “The trial was pretty low-profile. I didn’t know what to expect, but when I got to the courthouse the room was empty,” he told me. “That was very different from these criminal cases against Trump, or the fraud case or the defamation case.” (This month, a court found that Trump is not immune from prosecution. If that ruling stands, Trump will be tried in federal court later this year for his attempt to overturn the 2020 election.)

Magliocca isn’t surprised, given the events of January 6th, that his work on Section 3 has garnered interest. “There were other articles I’ve written where I was consciously trying to influence the law,” he told me. “All the times I did that, they didn’t do anything.” After years of identifying as a Republican, he now considers himself an Independent. “I got an e-mail from someone recently who said I must have been tipped off by Antifa about January 6th. No, I was not!” he said.

The ghost of twenty years past is with the Court in other ways, too. It so happens that Chief Justice John Roberts, Brett Kavanaugh, and Amy Coney Barrett were young attorneys on Team Bush, in 2000. Kavanaugh, Barrett, and Neil Gorsuch are fresh Trump appointees. None of these facts should be relevant to Trump v. Anderson, but, of course, they are. “For Justices like Barrett or Kavanaugh, with the benefit of hindsight in what came of Bush v. Gore, they would not want to be seen as political operatives in Donald Trump’s pocket, but I don’t know how that cuts,” Michael Kimberly, a lawyer who co-wrote the amicus brief signed by Hasen and Ginsberg, told me. Will they disqualify Trump or try to find a textual basis for continued eligibility?

Kimberly, like me, was in college at the time of Bush v. Gore; it was also the first Presidential election in which people our age could vote. A few years later—after 9/11, after the start of another war—I entered law school and took constitutional law with a young professor who’d recently clerked for Justice O’Connor. (She invited Kennedy, the other swing Justice, as a guest speaker.) One of her lectures covered the political-question doctrine, which maintains that the federal courts should avoid ruling on subjects that are fundamentally political, as opposed to legal, in nature. I remember feeling skeptical: Hadn’t the Supreme Court just decided the outcome of a Presidential election?

This week, Magliocca is teaching Trump v. Anderson in class. “I don’t know what I’m going to say. I told them to read the briefs—at least the main briefs,” he explained. (There are dozens of amicus submissions.) “If we hadn’t had January 6th, the Supreme Court might have said, ‘Eligibility is a political question. It’s only for Congress.’ ” But the courthouse faces the Capitol building; rebellion is not an abstraction for the Justices. If they disqualify Trump, there may be a riot. If they don’t, there could be one, too, including in November. “People are going to say, if Trump wins the election, ‘He’s not the real President. We’re going to Congress to have them stop!’ ” Magliocca told me. “That’s going to be a nightmare.”

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